The plaintiff, Great American Insurance Company, seeks
exoneration and equitable relief.

Plaintiff executed various bonds as surety for defendant Leon
B. Stilley pursuant to certain highway and road construction
between Stilley and the Division of Highways, Department of
Public Works and Buildings, State of Illinois. The complaint
alleges that Stilley has certain bills outstanding which were
incurred in the performance of the contracts and which are due
but unpaid.

The Marquette Cement Mfg. Co., a corporation, and Central Stone
Company, a corporation, claim certain amounts and are made
parties defendant to the action. W.J. Payes, Jr., Director of the
Department of Public Works and Buildings, Division of Highways,
State of Illinois, is also made a party defendant.

By its complaint the plaintiff seeks the court's aid in
directing and assuring that job funds due and to become due to
Stilley be used to pay job bills and obligations and in
furtherance of the relief sought asks that the defendant be
required to list the job creditors, the amounts owed and the
dates the obligations were incurred; that the court require
defendant Stilley to exonerate the plaintiff from the payment of
any bills for materials and labor due or to become due, arising
out of the project, and to pay and discharge any and all of the
bills and protect plaintiff on account thereof; that defendant
Stilley be enjoined from collecting and disposing of funds and
estimates payable under the contract otherwise than for
obligations, claims and expenses incurred in the performance of
the contract; and that the sums due and to become due under the
contract be paid jointly to the plaintiff and defendant Stilley
by the State of Illinois. It is for the purpose of having the
payments made jointly to the plaintiff and defendant Stilley that
the defendant Payes, Director of the Department of Public Works
and Buildings, Division of Highways, State of Illinois, is joined
as a defendant.

Defendant Payes has filed his motion to dismiss the complaint
as to him for the reason that the plaintiff by its action is in
effect making the State of Illinois a party defendant, contrary
to the provisions of Article 4, Section 26 of the Illinois State
Constitution, S.H.A. Article 4, Section 26 of the Illinois State
Constitution provides that the State of Illinois shall never be
made defendant in any court of law or equity. People ex rel.
Greening v. Green, 1943, 382 Ill. 577, 47 N.E.2d 465.

The Department of Public Works and Buildings is a governmental
agency of the State of Illinois, and it is well settled that a
suit against the department is a suit against the state and will
not lie. On the other hand, where an action is maintained against
a state officer or the director of a department on the ground
that, while claiming to act for the state, he violates or invades
the personal and property rights of the plaintiff under an
unconstitutional act, or under an assumption of authority which
he does not have, such a suit is not against the state. There is
a presumption that the state, or a department thereof, will not,
and does not, violate the constitution and laws of the state but
that such violation, if it occurs, is by a state officer or the
head of a department of the state, and such officer or head may
be restrained by proper action instituted by
a citizen. Monroe v. Collins, 1946, 393 Ill. 553, 66 N.E.2d 670;
People ex rel. Freeman v. Department of Public Welfare, 1938,
368 Ill. 505, 14 N.E.2d 642.

To determine whether or not this proceeding is within the
constitutional prohibition, it is necessary to look beyond the
names of the formal parties to the record and examine the nature
of the action.

In Houston v. Ormes, 1920, 252 U.S. 469, 40 S.Ct. 369, 64 L.Ed.
667, the United States Supreme Court had for consideration the
question whether the Secretary of the Treasury and the Treasurer
of the United States might properly be made parties defendant in
an action by a plaintiff who sought to require payment of funds
in the Treasury which had been found to be due and owing by the
Court of Claims and had been appropriated by Congress. The Court
had the following to say:

"* * * But since the fund in question has been
appropriated by act of Congress for payment to a
specified person in satisfaction of a finding of the
Court of Claims, it is clear that the officials of
the Treasury are charged with the ministerial duty to
make payment on demand to the person designated. It
is settled that in such a case a suit brought by the
person entitled to the performance of the duty
against the official charged with its performance is
not a suit against the Government. So it has been
declared by this court in many cases relating to
state officers. * * * a suit against officers of the
United States might be in effect a suit against the
United States, * * *. `Of course, this statement has
no reference to and does not include those cases in
which officers of the United States are sued, in
appropriate form, to compel them to perform some
ministerial duty imposed upon them by law, and which
they wrongfully neglect or refuse to perform. Such
suits would not be deemed suits against the United
States within the rule that the Government cannot be
sued except by its consent, * * *'."

In the instant case the plaintiff, as surety, is secondarily
liable for claims arising out of the contract between defendant
Stilley and the State of Illinois. Defendant Stilley is primarily
liable. The plaintiff here merely seeks to assure that the funds
due and to become due by the State of Illinois to defendant
Stilley shall not be used for purposes other than the payment of
claims arising in the performance of the contract — claims for
which the plaintiff may become liable in the event they remain
unpaid. It seems clearly equitable that the funds earned in the
performance of the contract should properly be utilized to
satisfy the liabilities incurred in the performance of the
contract. Defendant Stilley might be enjoined from disposing of
the funds and in default of the injunction could be penalized;
such action would, however, not satisfy the obligations for which
this suit is instituted. The one method by which the funds earned
on the job may be earmarked for the payment of the liabilities
incurred on the job is to have payments made jointly to the
plaintiff and defendant Stilley.

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